Tim Rutten: The wretched mistakes of Guantanamo

In 1920, at the height of the Irish War of Independence, Sinn Fein's newly elected Lord Mayor of Cork, Terence MacSwiney, was arrested by the British and dragged before a court martial.

MacSwiney, a well-known young poet and playwright, was convicted of possession of seditious materials and sentenced to two years in England's Brixton prison. Shortly after arriving there, he went on hunger strike to protest not only his detention, but also his trial by military officers. Seventy-four days later, after a series of forced feedings, he died. More than any other single event, his death galvanized international opinion in favor of Irish freedom. Mahatma Gandhi, Jawaharlal Nehru and Ho Chi Minh would subsequently cite MacSwiney as an example of self-sacrifice.

He is perhaps best remembered today for something he predicted about the politics of the coming years shortly before falling into a final coma: "It is not those who can inflict the most, but those that can suffer the most who will prevail. "

As our lawmakers and those of us they represent weigh President Barack Obama's renewed efforts to close the military detention facility at Guantanamo, Cuba, it might be well to keep MacSwiney's prophetic admonition in mind. That island prison, its pseudo-courts - the so-called "military tribunals" - and the deluded, ramshackle thinking on which the whole dubious enterprise is built have been a scandal from the start - and now the whole situation is unsurprisingly deteriorating. Many of the 166 accused Al Qaeda terrorists incarcerated there now have been held without charges or trial for more than 11 years, even though nearly half of them - 86 - have been deemed of so little threat that they could be repatriated to their homelands. More than 100 of them now have joined a months-long hunger strike, and 21 of them have starved themselves to the point that they're being strapped into chairs and force fed.

In fact, last week nearly 40 more U.S. Navy nurse and corpsmen were dispatched to Guantanamo to assist in those efforts. It is outrageous to order our serving young men and women to participate in acts that medical authorities say affront the essence of their calling. In a letter to Defense Secretary Chuck Hagel this week, the American Medical Association's president, Dr. Jeremy A. Lazarus, wrote that force feeding a prisoner violates "core ethical values of the medical profession ... . Every competent patient has the right to refuse medial intervention, including life-sustaining interventions." Meanwhile, reports from Guantanamo say that the number of suicide attempts is increasing and that it only is a matter of time before one succeeds.

During a press conference recently, Obama said the situation at the prison is "not sustainable. The notion that we're going to keep 100 individuals in no man's land in perpetuity makes no sense. All of us should reflect on why exactly are we doing this? Why are we doing this? "

The answer, of course, is twofold: First, Congress has so far blocked this administration from bringing the detainees to the United States or trying them in federal courts. Second, the Bush-Cheney Administration created Guantanamo in the depth of their post 9/11 panic and because they believed that a now soundly discredited theory of governance - the so-called "unitary executive" - gave them the authority to seize people, hold them indefinitely in secret and without legal process, torture them for information, then try them before newly created military tribunals with ad hoc rules of procedure.

That is not to say that many of the Guantanamo prisoners don't deserve to have the full weight of the law brought down on their heads.

The Bush-Cheney Administration's mishandling of them - particularly its indefensible and ineffectual insistence on torture - has infinitely complicated the prospects of doing that, as has continued congressional obduracy. As a spokesman for Senate Minority leader Mitch McConnell of Kentucky said last week, there remains "wide bipartisan opposition in Congress to the president's goal of moving those terrorists to American cities and towns. "

The worst thing about this continued reliance on the improvised Guantanamo system is that it has spared some of the vilest Al Qaeda criminals from the reach of our justice. Consider this: Since Jihadists first struck the United States with the 1993 World Trade Center bombing, the federal criminal courts have an exemplary record of dealing fairly and swiftly with the terrorists brought before them. Though apprehended in Pakistan, Ramzi Yousef, the leader of that attack was convicted in a New York federal court and sentenced to life in prison without parole in 1996. In that same year, Omar Abdel-Rahman, the so-called "Blind Sheik," was convicted and given a similar sentence. In 2002, Richard Reid, the Shoe Bomber, pled guilty in federal criminal court and also received life without parole. In 2010, that also was the fate of the Times Square Bomber, Faisal Shahzad and, last year, it was the turn of Underwear Bomber, Umar Farouk Abdulmatallab.

Meanwhile, Nidal Hasan, the Army doctor who committed mass murder at Fort Hood Texas in 2009 has yet to receive his military trial. Worst of all, master terrorist Khalid Sheikh Mohammed, the self-admitted architect of 9/11 and murderer of Wall Street Journal reporter Daniel Pearl, has been in U.S. custody since 2003 and still languishes at Guantanamo untried and, quite obviously, unpunished. Moreover, his subjection to torture will infinitely complicate the task of whatever prosecutor who ultimately gets their hands on his case.

Perhaps the very worst thing about Guantanamo from the start has been its implicit and dismissive lack of faith not only in our most basic human values, but also in the strength of our constitutional system. As President Obama correctly put it: "The idea that we would still maintain forever a group of individuals who have not been tried ... that is contrary to who we are, contrary to our interests and it needs to stop. "

The most tragic of the wretched mistakes Guantanamo represents would be to turn criminals into martyrs.